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11/23/2018

Brain Death – Court Refuses to Decide Moot Case on Religious Opt Out

Shalom Ouanounou was determined dead on neurological criteria on September 10, 2017. But his family obtained an injunction against the removal of organ sustaining treatment while they contested whether Shalom had a constitutional right to opt out of brain death for religious reasons.


Interestingly, the family wanted the case treated like a medical futility conflict before the CCB. In Ontario, that would mean the patient’s wishes for continued “treatment” must be honored.


The court held a hearing in February 2018. But then Shalom died on cardiopulmonary criteria in March 2018. In November 2018, the court determined that this death mooted the case and no exception to the mootness doctrine applied.


I am regularly annoyed when courts decline to adjudicate end-of-life cases. The very nature of the cases means they will often become moot before a ruling. Yet, refusing to decide the issues leaves clinicians and families with too little guidance. 


I am not annoyed by the court’s decision in this case. Unlike the parties in the case, I find the court’s decision to be reasonable. Ontario will soon get guidance. The same issues are at issue in the Taquisha Mckitty case. That case has already been decided by the Superior Court of Justice in June 2018. And it is already scheduled for oral argument in the Court of Appeal on December 12, 2018.

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